Nonresident Job Seekers and the New York City and State Human Rights Laws: The (Forthcoming) Implications of Syeed v. Bloomberg L.P.

On January 23, 2023, in Syeed v. Bloomberg L.P., the United States Court of Appeals for the Second Circuit addressed a discrete but interesting issue concerning application of the New York City Human Rights Law and the New York State Human Rights Law (together, the “HRLs”).[1]

The HRLs prohibit, among other things, employment discrimination on the basis of race, gender, age, and other protected characteristics.  Because these laws are generally considered broader than their federal counterparts – e.g., in their use of a more liberal standard and in allowing for individual liability – whether plaintiffs may properly invoke them can have important litigation consequences.

The narrow legal question presented in Syeed, which the court described as one of first impression at the circuit level, was the following:  can a plaintiff who does not reside in and who is not employed in New York City or New York State adequately plead and prove claims under the HRLs if she alleges and later establishes that an employer discriminatorily deprived her of a job opportunity based in the City or State?

Unfortunately for those seeking immediate clarity on the issue, the Second Circuit reserved decision and certified the question to New York’s highest state court.  It is now up to the New York Court of Appeals to provide definitive resolution.  While we wait for that court to settle the question, let’s review some of the legal points involved.

The Pertinent Allegations in Syeed & the District Court’s Decision

Syeed, a South Asian-American woman, alleged that Bloomberg L.P. (“Bloomberg”) had failed to promote her in 2018 for sexist and racist reasons.  According to her complaint, she experienced discrimination while working as a reporter for Bloomberg in Washington, D.C., and ultimately concluded that she did not have a career path at that bureau.  While in D.C., she expressed interest in a New York City-based United Nations reporter position that had become available at Bloomberg, and she applied for other positions in the company’s New York bureau.

According to Syeed, the United Nations reporter position was later filled by “a less experienced, less qualified male reporter,” and in a conversation with her managing editor, she was told that “Bloomberg considered making the UN job a ‘diversity slot,’ but it ‘didn’t work out that way.’”  She took this to mean that, rather than being considered for transfers or promotions based on merit, she was effectively limited to positions designated as “diversity slots.”  Syeed further alleged that the employment decisions at issue were controlled by a management committee operating from Bloomberg’s New York City headquarters.  Based on these allegations, Syeed asserted failure-to-promote claims against Bloomberg under the HRLs.

Bloomberg moved to dismiss those claims, and, in January 2021, the United States District Court for the Southern District of New York granted the motion.[2]  The court concluded that the causes of action failed as a matter of law since Syeed could not satisfy the “impact test” required under the HRLs.  According to the court, Syeed, “who at all relevant times worked in Washington, D.C.” and was a nonresident of New York City and State, did not and could not adequately plead that she “felt the impact of Bloomberg’s [alleged] discrimination in New York City or State.”

The “Impact Test” & Related Appellate Arguments

Taking up the matter on appeal, the Second Circuit acknowledged the “impact” requirement for nonresident plaintiffs asserting HRL claims, but concluded that the precise contours of that requirement were far from well defined.  Indeed, as explained below, the Second Circuit found that existing caselaw was inconclusive and ambiguous.  It also found that substantial, competing state interests were in play.  Consequently, the Second Circuit called upon the New York Court of Appeals to resolve the issue.[3]

Conflicting, Unclear Caselaw

According to the Second Circuit, the closest state court case on point is Hoffman v. Parade Publications.[4]  There, the Court of Appeals considered the “territorial reach” of the HRLs in circumstances where allegedly discriminatory conduct was directed toward a nonresident plaintiff.  It held that the HRLs were intended to apply to persons who “inhabit” or were “within” (essentially, “working within”) New York City and State, and that nonresidents must therefore “plead and prove that the alleged discriminatory conduct had an impact within those respective boundaries.”

The Second Circuit could not discern sufficient guidance for Syeed in Hoffman.  It said that Hoffman was “silent” as to whether, “in discriminatory failure-to-hire or failure-to-promote cases,” a plaintiff who did not work in New York City or State – “but who alleged that but for an employer’s unlawful conduct, he or she would have worked” there – would “also be unable to assert sufficient personal impact” in those locations.

Furthermore, the Second Circuit saw conflicting signs in Hoffman.  In certain portions of the Hoffman decision, it seems to imply that nonresidents can satisfy the impact requirement only if they “work in” the City or State at the time of the alleged discrimination.  But the Second Circuit felt that such language did not necessarily preclude application of the HRLs to nonresident plaintiffs “who would work in New York City or State absent discrimination.”  Additionally, another portion of Hoffman leaves open the possibility, according to the Second Circuit, that plaintiffs might be able to satisfy the impact requirement without living or working in the City or State – namely, Hoffman’s apparently two-part explanation that dismissal was proper there because the plaintiff was “neither a resident of, nor employed in, the City or State of New York.  Nor does Hoffman state a claim that the alleged discriminatory conduct had any impact in either of those locations.” (emphasis added).

The Second Circuit deemed other potentially relevant state court decisions, none of which arose in the failure-to-hire or failure-to-promote context, to be equally unclear for purposes of defining the impact test.  Some cases have interpreted the requirement to “turn . . . primarily on [the plaintiff’s] physical location at the time of the alleged discriminatory acts.”[5]  Others appear to take a more expansive approach, suggesting that a plaintiff can legitimately assert impact if the alleged discrimination affected “the terms, conditions[,] or extent of [his or her] employment . . . within the boundaries of New York.”[6]

As to federal court decisions, the Second Circuit said there were none on point at the appellate level.[7]

As to federal court decisions at the district court level, the Second Circuit pointed to three Southern District of New York cases that had reached conclusions opposite to that of the lower court in Syeed.  In Anderson v. HotelsAB, LLC, the court declined to dismiss a case brought by a plaintiff who had not been hired for a position that would have required work in New York City, reasoning that the allegedly improper failure to hire “had an impact with respect to [the plaintiff’s] prospective employment responsibilities in New York City.”[8]  Similarly, in Chau v. Donovan, the court found that a California plaintiff claiming that she had unlawfully not been hired for a New York City position had adequately pleaded the impact requirement.[9]  And in Scalercio-Isenberg v. Morgan Stanley Services Group Inc., a New Jersey plaintiff was held to have adequately pleaded HRL impact where she alleged that she had not been hired for a New York City position.[10]

In the end, the Second Circuit felt that there were insufficient and insufficiently clear New York decisions to properly determine the issue.

Competing Policy Interests

The Second Circuit also concluded that the New York Court of Appeals was better suited to weigh the competing state interests implicated by the issue.

A ruling in Syeed’s favor would expand the set of nonresident plaintiffs who could invoke the HRLs, allowing suits against prospective employers by those who had no past or present connections to the City or State, but rather only prospective or speculative ones.

Conversely, a ruling in Bloomberg’s favor would effectively insulate from all HRL liability any New York City or State employers that engage in discriminatory hiring and promotion with respect to City- or State-based jobs to the extent those adverse decisions are directed toward nonresidents.

Conclusion

It is, indeed, difficult to predict which way the New York Court of Appeals will rule on the issue.  The court might conclude that the HRLs’ jurisdictional requirement is not satisfied where the impact of alleged discrimination is so abstractly felt in New York City and State and where a plaintiff’s contacts with those locations are so conditionally attenuated.  It might, however, hold that, in the discriminatory failure-to-promote and failure-to-hire contexts, a legally important, non-tangential impact occurs in New York City and State even when the plaintiff who is denied a job opportunity based in those locations is a nonresident.

In any event, until the issue is settled, employees and applicants who live and work outside New York City and State should still consider asserting claims under the HRLs if they are denied promotions or jobs located in New York on unlawful grounds.  Likewise, employers and executive decisionmakers should be aware that any potentially discriminatory hiring or promotion decisions (to be strictly avoided regardless, of course) could subject them to liability not only from those who live and work in New York City and State, but also from employees and applicants who live and work well outside those jurisdictions.

[1] 58 F.4th 64 (2d Cir. 2023).

[2] 568 F. Supp. 3d 314 (S.D.N.Y. 2021).

[3] The New York Court of Appeals has already accepted certification of the question.  Syeed v. Bloomberg L.P., 2023 WL 1828926 (Feb. 9, 2023).

[4] 15 N.Y.3d 285, 907 N.Y.S.2d 145 (2010).

[5] Benham v. eCommission Sols., LLC, 118 A.D.3d 605, 989 N.Y.S.2d 20 (1st Dep’t 2014).

[6] Hardwick v. Auriemma, 116 A.D.3d 465, 983 N.Y.S.2d 509 (1st Dep’t 2014).

[7] The court commented briefly on three appellate-level decisions: (i) Vangas v. Montefiore Med. Ctr., 823 F.3d 174 (2d Cir. 2016) (plaintiff in discriminatory-termination case who worked, was supervised, and was terminated in Yonkers, but who spoke to NYC patients on the phone, failed to show impact under NYCHRL because “she was not personally impacted in the City”); (ii) Ware v. L-3 Vertex Aerospace, LLC, 833 F. App’x 357 (2d Cir. 2020) (plaintiff in hostile-work-environment and retaliatory-termination case did not satisfy impact requirement of HRLs “by virtue of his employer’s parent company being headquartered in New York”); and (iii) Fried v. LVI Servs., Inc., 500 F. App’x 39 (2d Cir. 2012) (plaintiff in discriminatory- and retaliatory-termination case who worked and lived in Connecticut but who communicated with NYC office and attended work meetings there did not meet NYCHRL impact requirement “through those tangential connections”).

[8] 2015 WL 5008771 (S.D.N.Y. Aug. 24, 2015).

[9] 357 F. Supp. 3d 276 (S.D.N.Y. 2019).

[10] 2019 WL 6916099 (S.D.N.Y. Dec. 19, 2019).

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Attorney Gregory Feit who counsels clients on employment law, litigation, arbitration, negotiation, and trial advocacy. Mr. Feit served is admitted to practice in New York.